Dean v. Lowey

Opinion of the Court, Waterman, J. Appellant, in a declaration by him filed, set forth that he entered into a written contract with appellee in and by which it was agreed‘that appellee had sold to appellant certain real estate for the sum of §15,000, §500 of which was to be and was paid at once, the balance to be paid in installments of §500, maturing from time to time as provided; that it was also provided that he, appellant, should at once proceed to remodel and improve the said real property in a manner and within a time described in said agreement, and that if he, appellant, to whom immediate possession of said real property was to be and was given, failed to perform and fulfill the undertakings by him in said agreement made, that then the said appellee might at his election declare said contract forfeited, repossess himself of said real property, and retain all sums paid, as liquidated damages for the breach of said contract, time being of the essence thereof. That owing to the inability of appellant to obtain money as he expected, and to his poverty, and not willingly or willfully, he was unable to comply with the terms of said contract, although he did pay the sum of §500 aforesaid, and did place about §15,000 of improvements upon said premises; that because of his, appellant’s, failure to comply with the terms of said contract, appellee declared said contract, and the same now is, at an end, forfeited and void and of no effect; and appellee, by means of a proceeding of forcible detainer, repossessed himself of, and now holds, said premises. That the said §500 paid as aforesaid, and the improvements put by him, appellant, upon said premises, are very greatly in value in excess of any damage and cost that appellee has sustained and expended by reason of his, appellant’s, failure fully to perform said contract; whereby appellee became and was indebted to him, appellant, in the sum of §15,000, and thereby undertook and promised to pay the same, etc. To this declaration a demurrer was sustained. The plaintiff therefore prosecutes this appeal. Courts do lean against forfeitures, and if this were an attempt to have a forfeiture set aside, the case stated to the court would appeal strongly to its sense of equity. This, however, is not what appellant asks. He does not now ask that he be permitted to fulfill his contract, but that the court shall make a new one and enforce that. Having contracted to buy certain property of appellee, and having failed to comply with the agreement of purchase, he asks that the court shall turn such contract into a bargain for the improvement of appellee’s property, and compel him, appellee, to pay for the improvements put thereon. Heither a court of law nor equity has power to make bargains for parties. Appellee contracted to sell his land; such bargain can not by any court be changed into an agreement to hire appellant to put improvements thereon. It is immaterial whether appellant’s failure to perform his agreement was owing to misfortune or willfulness; whether he made a bad bargain which he does not care to carry out, or undertook that which his means did not enable Mm to perform. Impossibility of performance, so that there be no natural impossibility in the thing, is no excuse for a promisor. 2 Parsons on Contracts, 673. An undertaking to do a thing which is in itself possible, will render the promisor liable for a failure although it was beyond his power to accomplish,- for it was his folly to run the risk of being able to do that which for him has proven to be impossible. Walker v. Tucker, 70 111. 527. Where a party has by contract taken upon himself a duty he is bound to make it good, and if loss occur, even from inevitable accident, it falls upon him who has contracted that he will bear it. As to this rule the Supreme Court in Steele v. Buck, 61 111. 313, said: “ The rule is a just one, and has its foundation in reason, for if he did not intend to bear the loss, it is natural to presume he would have stipulated against it. It tends to promote justice by regarding the sanctity of contracts.” The judgment of the Circuit Court is affirmed.